The Notion of Superiority of Arbitration Agreements over Jurisdiction Agreements: Time to Abandon It”, 24(4), Journal of International Arbitration, (2007) pp.341–363 (original) (raw)
Related papers
2012
The parties to an arbitration agreement waive the right to bring an action in court and exclude the jurisdiction of courts by this arbitration agreement. At the same time, this agreement is accepted as a primacy resource of arbitration. In this sense, it is a guideline of the parties and arbitral tribunal during the whole arbitration process. Furthermore, the arbitration agreement is the strongest evidence of party autonomy, because the parties choose the law and conduct the arbitration process independently by an arbitration
The doctrine of party autonomy in international commercial arbitration: myth or reality?
Journal of Sustainable Development Law and Policy (The), 2016
T he increased preference for arbitration has buttressed the growing disenchantment for traditional adversary method of litigation. The foundation of every arbitration proceeding is the arbitration agreement. The parties' agreement constitutes a contract to refer disputes, which have arisen or may arise in future between them to arbitration. The freedom of parties to consensually execute arbitration agreement is known as the principle of party autonomy. The principle provides a right for the parties to international commercial arbitration to choose applicable substantive law and these laws when chosen shall govern the contractual relationship of the parties. However, the pertinent questions have always been: Do parties actually have absolute freedom to determine the arbitration process? To what extent has this been achieved in the resolution of disputes having international concerns? And lastly, is party autonomy a myth or reality? These questions and many others have continued to provoke discussions in many fora on the applicability of party autonomy in international commercial arbitration. To find meaning to the above questions, this article analyses the principle of party autonomy. The ultimate aim of the article is to answer the question whether the practical application of the principle of party autonomy is indeed a myth or reality?
International Arbitration: Selected Preliminary Topics
A. International arbitration as opposed to other means of dispute settlement B. The Concept of International Arbitration: definition, composition and international public / private arbitration C. The requirement of consent D. Applicable Law E. The pathology of arbitral awards
Penn State Journal of Law and International Affairs , 2019
International commercial arbitration has enjoyed increasing popularity as an alternative to litigation in court, with high standards expected of arbitrators in managing a fair process and ensuring a just outcome. Central to the concepts of fairness and justice are neutrality, independence and impartiality, themes that are often closely associated with each other in arbitral proceedings and often lack specific guidance as to their meaning. This paper analysis these concepts, and discusses how adherence to them is largely dependent upon the appointed arbitrators. While parties have the freedom to choose their arbitrators, domestic laws rarely impose specific qualifications in order to act as an arbitrator. However, in light of the importance of the task that arbitrators must undertake, some minimum qualifications are generally imposed by international, institutional and/or national laws. The legal requirement of impartiality and independence is the one most frequently provided for in legal instruments, whereas neutrality is dealt with in a more subtle, indirect way. The paper discusses the lack of clear and effective standards both domestically and internationally for measuring arbitrator performance and why this is a cause of concern, particularly in light of the private and confidential nature of the arbitral process and the final and binding nature of the award that results from that process. The paper discusses how the fairness of the process and the outcome that results is ostensibly supported by the requirement of good faith from arbitrators, and the need for disclosure by them of any pre-existing contact with a party that may give rise to bias or the perception of bias throughout the process. The paper concludes with proposals for reform to enhance adherence to these distinctive and central themes in international commercial arbitration, in order that parties can experience a fair process and attain a just outcome.
Beijing Law Review, 2021
This article discusses the powers of an arbitral tribunal to determine its own jurisdiction. The determination of the question of the jurisdiction of a tribunal lies in its own domain at least in the first instance by virtue of the principle of competence-competence. The principle enables a tribunal to test its own jurisdiction and confirm the extent of its power. This is one of the pillars of arbitration as it promotes party autonomy. The positive aspect of this power of the tribunal is that it cures the excesses of jurisdiction or any lack of it by granting an objecting party with immediate remedy thereby saving costs and time. The downside of this power is that an objecting party may still be permitted under the English Act and the Model Law to revert to court during the proceedings if he is not happy. However, time is of the essence. The article rests on an accumulation of case law, current and secondary literature. It takes cognizance of the fact that parties to an arbitration ...
Balance: Autonomy or Precedent in Treaty-based Arbitration?
Do Arbitrators have autonomy to adjudicate in Investment Arbitrations? Are they bound by precedent arbitral awards? What motivates them to refer to previous cases? At what level tribunals are influenced by other tribunals' decisions facing different disputes, BITs, parties, etc.? What are the theories for and against? Is it possible to balance both positions? Are all the above mentioned aspects negative? Or positive? This paper answers these questions.
Harvard Negotiation Law Review, 2018
The article discusses the possibility of finding an arbitral equilibrium between preserving the sanctity of party autonomy and tempering the powers of arbitrators to determine the applicable law. It begins by demonstrating how the principle of party autonomy is embedded in various sources of law, albeit applied differently across jurisdictions, and the different forms that it takes. The scope of party autonomy in the circumstances where the parties have designated their choice-of-law through a choice-of-law clause in their contractual agreement, whether expressly or tacitly is discussed. Circumstances where parties decide to delegate their right to choose the applicable law to the arbitral tribunal and have the arbitrators act as amiables compositeurs or decide ex aequo et bono (according to equity, justice and fairness) is assessed. The context where the choice-of-law of the parties will not be followed such as when there are issues of mandatory laws and public policy are discussed. Depending on the theory that one subscribes to, international public policy can have significant implications and these issues are also reviewed. Where a choice-of-law does not exist, the far-reaching freedom that arbitrators have to determine the applicable law is analysed. Different conflict-of-law rules adopted by tribunals are reviewed in an attempt to find coherence. The article concludes with proposals for reform, including suggested amendments to the UNCITRAL Model Law on International Commercial Arbitration, and the possibility of the adoption and adaptation of the Hague Principles on Choice of law in International Commercial Contracts, to find the appropriate balance between the sanctity of party autonomy and the power of arbitrators to determine the applicable law, in order to enhance the predictability and legal certainty of international commercial arbitration.
The Ties that Bind: The Limits of Automony and Uniformity in International Commercial Arbitration
University of Pennsylvania Journal of International Law, 1992
Responding to the perceived requirements of international commerce, most industrialized nations have enacted legislation that encourages recourse to international commercial arbitration. Legislative support for arbitration, however, has not been unconditional. International commercial arbitration is also a creature of contract and therefore implicates the public policy of the country where it takes place. The call for autonomy and uniformity in international commercial arbitration reflects a desire to liberate this process from the shackles of local curial norms. Modern national arbitration laws differ in the extent to which they separate international arbitration from domestic public policy; but all laws protect at a minimum those interests deemed vital to basic notions of morality and justice. These are the ties that bind. This Comment addresses the development of international commercial arbitration in four parts. Section II analyzes the commercial needs which drive international...